Monthly Archives: July 2005

The Citizen’s Guide to Refusing New York Subway Searches | FlexYourRights.org: While Flex Your Rights takes no position on the usefulness of these searches for preventing future attacks, we have serious concerns that this unprecedented territorial expansion of police search powers is doing grave damage to people’s understanding of their Fourth Amendment protections against unreasonable searches and seizures.

In addition, as innocent citizens become increasingly accustomed to being searched by the police, politicians and police agencies are empowered to further expand the number of places where all are considered guilty until proven innocent.

Fortunately, this trend is neither inevitable nor irreversible. In fact, the high-profile public nature of these random subway searches provides freedom-loving citizens with easy and low-risk opportunities to “flex” their Fourth Amendment rights by refusing to be searched.

If you’re carrying a bag or package into the subway, here’s what you need to know and do in order to safely and intelligently “flex” your rights:

The memos are extraordinary. They are written by JAGs from the Air Force, Navy, Army and Marines. As Senator Graham put it on Monday, these folks “are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself.”

It is fair to say that these accounts reflected sustained, uniform and passionate opposition to the OLC legal theories that were being foisted upon the military. Indeed, the tone of the memos is one of barely concealed incredulity, and outrage–disbelief–that a young legal academic from DOJ could sweep right in and so quickly overturn decades of carefully wrought military policy, using legal analysis that almost certainly would not withstand scrutiny outside the Administration and around the world. …

In particular, these memos eloquently warn of the grave harms that could result from such a radical shift in policies and legal understandings–harms not only to the prospects for nation’s efforts to stop terrorism, but also to military interrogators and officers who could face domestic and international prosecution for engaging in such conduct, and, most importantly, to U.S. forces who are themselves detained in this and future conflicts.

No doubt some horrible trademark violation if used seriously. Googlification via Logogle.com (Hmmm. Trademark…) via boingboing (who call the process “Google-fying” and the end result a “Googloid” logo).

Lots of people apparently find Roman Polansky’s libel victory over Conde Nast to be an odd result. The claim was that Vanity Fair falsely asserted that in 1969, while en route to the funeral of Sharon Tate, his wife, who had just been murdered, Polanski groped and propositioned a Scandinavian model, promising to “make another Sharon Tate out of you.” Polanski denied it, in tears, and the jury agreed. (England has generally abolished juries in civil cases but still uses them for libel cases.)

The trial did indeed have several strange features. The first was that the plaintiff was not a nice person: Roman Polansky is a long-time fugitive from US justice, having fled while on bail before sentencing, after admitting the statutory rape of a 13 year old girl. This fact caused the second odd feature of the trial: fearing extradition to the US to serve his sentence were he to set foot in the UK, Polansky was allowed to give his evidence by video. Which of course exacerbates the third apparent oddity of the trial: that it was held in the UK (a country with pro-plaintiff libel laws), when the Vanity Fair, the magazine in which the article at issue appeared, is US-based.

Actually, it’s not that strange. Vanity Fair circulates in the UK, so it’s fair game there — and since its sold on newsstands and (I imagine) to subscribers, it’s considerably fairer game in the UK than, say, web pages which are delivered for free and by the readers decision to pull a page rather than a publisher’s decision to send physical copies to the jurisdiction.

The decision to allow the video testimony is a closer call; I could certainly understand a court saying that if plaintiff has unclean hands he shouldn’t come to court. And I’m no great fan of video testimony in general. But idea that the courts should be open to do justice even in the exceptional case where the plaintiff cannot risk being in the jurisdiction has its admirable qualities too.

The least strange aspect of this decision is that Polanski won.

The defense tried to blacken Polanski’s name by suggesting he slept around. He admitted it. End of issue: that sort of tactic doesn’t work anymore, at least against men. More substantive was the suggestion that a fugitive from justice for statutory rape is the sort of person who can’t be libeled — like (traditionally) a prostitute or (contemporaneously) a war criminal. What overcame that, I suspect, was the seeming cruel falseness of the anecdote, and Polanski’s emotional reaction to it.

I began to suspect Polanski might win as soon as I learned the name of the source of the allegation in question: Lewis Lapham.

Mr. Lapham has lectured at many of the nation’s leading universities, among them Yale, Princeton, Stanford and the Universities of Michigan, Virginia and Oregon. He is a frequent guest on television and radio talk shows both in the United States and in England, France, Canada, Germany and Australia. He was the host and author of the six-part documentary series “America’s Century,” broadcast on public television in the United States and in England on Channel Four in the autumn of 1989. Between 1989 and 1991 he was the host and Executive Editor of “Bookmark,” a weekly public television series seen on over 150 stations nationwide. Lapham is a member of The Council on Foreign Relations, The Century Club, the Advisory Council to the New School University and Chair of the Board for The Americans for Libraries Council.

… Lapham’s credibility as a reliable reporter must surely now be reduced be zero?

Testifying in a libel case setting Mr. Polanski, 71, against Vanity Fair magazine, which reported the anecdote in an article in July 2002, Mr. Lapham said the incident had embedded itself in his memory.

“I was impressed by the remark, not only because it was tasteless and vulgar, but because it was a cliché,” the 70-year-old editor said.

And now, to ice the cake, the model whom Polanski supposedly tried to pick up — who wasn’t called to testify in the libel trial — says no such thing ever happened.

On balance, this verdict feels like justice. But I fear it will not have the consequences it should. In ye olde days, a man disgraced by being found by a jury to be a less believable witness than a rapist would resign his clubs and go hide out somewhere and take up drink. Now, I suppose Lapham will just write about it. But whoever publishes it better hire a good fact-checker.

If Polanski has been libeled, he deserves to be vindicated. But he also deserves to serve his sentence. So a truly just result would have had him testify by video — because he was in one of our prisons.

I should add that one of the reasons why I think the issue of allowing the extraterritorial testimony is genuinely hard on these facts is that there’s zero chance that denying relief might compel Polanski to travel and risk serving his time. Thus, the case for withholding access as a coercive means to compel compliance is weak; the withholding must be justified either as retributive (which is not the UK court’s job here) or as somehow beneath the court’s dignity. Counterbalancing the latter is the idea that two wrongs don’t make a right.